Should Congressional Research Service Reports Be Kept Secret?

Transparency boosters have long pined for public release of the hundreds of informative Congressional Research Service reports prepared—often on a confidential basis—for members of Congress.

The reports, after all, are no longer confined to expensive paper products but now emerge as instantly accessed free digital links. So why not take the fruits of the 500-strong staff of highly educated specialists at the $107 million-budget CRS and circulate the reports freely among journalists, nonprofits, lobbyists and average citizens?

Reps. Mike Quigley, D-Ill., and Scott Rigell, R-Va., took a shot at it last month when they brought their Congressional Research Service Electronic Accessibility Act (H.R. 4702) to the House Appropriations Committee, offering it as an amendment to the defense spending bill (having seen no action in the House Administration panel). 

“I fear that too many Americans get the majority of their news from 24-hour news channels that prioritize sound bites and sensationalism,” Quigley said. “It’s time to elevate the debate in this country and allow the American people to access the same neutral, unbiased, nonpartisan information that members of Congress rely on every day. Opening CRS reports to the public would empower constituents with vital information about the key issues, policies, and budgets debated in Congress, increase government transparency and give the public the tools to they need to hold their government accountable.”

A Senate companion bill (S. 2639) in April drew backing from a coalition of more than 40 organizations and a dozen free market groups, including the Project on Government Oversight, the American Library Association and Demand Progress. They argued that most of the numbered (formal) reports – which cover any number of topics in national security, the law and economics -- are already routinely circulated by activists and that the bill contains safeguards that protect confidentiality of individual lawmakers who request analyses from CRS. The groups see no harm in requiring the Government Publishing Office to post the main reports online. Also, as several former analysts at CRS itself told Government Executive, releasing the reports to a broader audience including outside experts might actually improve the quality of CRS’ research.

But at the May 17 appropriations markup, the Quigley-Rigell bill was voted down, with objections raised by both Republicans and Democrats. The reasons they gave are shifting and complex.

A TOOL OF CONGRESS

The language guiding reports from the Congressional Research Service—which traces its roots on Capitol Hill to 1914 and is now under the Library of Congress—goes back to a 1952 legislative branch appropriations bill. It said, “Provided, That no part of such amount may be used to pay any salary or expense in connection with any publication, or preparation of material therefor (except the Digest of Public General Bills), to be issued by the Library of Congress unless such publication has obtained prior approval of either the Committee on House Administration of the House of Representatives or the Committee on Rules and Administration of the Senate.”

Though written at a time when printing costs were a consideration, that language is taken today as a protection for lawmakers who see CRS as a tool and an extension of their own staff who retain the prerogative of releasing the reports as they see fit.

Garrett Hawkins, a spokesman for Rep. Tom Graves, R-Ga., the appropriations subcommittee chairman who rejected the bill, told Government Executive, “The Congressional Research Service is an arm of Congress, and Rep. Graves believes that it should answer first and foremost to Congress. Individual members will continue to be free to make CRS content public.” CRS content must be trusted and crafted to serve Congress, Graves argued, and the proposal to require publication could impose “undue pressure” on CRS from outside groups that could detract from its nonpartisan approach.

Rep. Debbie Wasserman Schultz, D-Fla., ranking member of the subcommittee, warned that forcing public release would slow the work of CRS analysts. “It’s easy to say transparency, but Congress relies on CRS as an extension of staff, for quick and dirty analysis that is sometimes not perfect,” said an appropriations committee aide familiar with her views. “We need to be careful about a culture change at CRS if it became a public-facing organization, like the Government Accountability Office.”

GAO, the aide stressed, does a great job of laying out issues neutrally with no recommendations. “But we don’t need another one of those—we want and we have to look at the long-term ramifications,” the aide said, recalling the abolition in the 1990s of the Office of Technology Assessment to save money.  “Members don’t want to be looking back, say, 20 years from now and asking, ‘Why doesn’t CRS tell us what we want to know?” If numbered reports are required to be released, why not staff memos as well, the aide continued. There also could be added costs and pressure to constantly update reports posted on the GPO website.

The debate has become simplistic, this aide concluded, suggesting a possible compromise in having the Clerk of the House and the Secretary of the Senate determine which reports get released.

But Quigley spokeswoman Emily Hampsten told Government Executive that her boss has addressed many of these objections, including existing exceptions for national security analysis. “We know that concerns include what products would be made available, anonymity of each CRS staffer, how CRS would be portrayed, and weakening analyst protection under the Speech and Debate clause,” she said. The latest version of the bill “only requires that a CRS product be made available if it is a CRS Report or CRS Appropriations Product.” It explicitly states that this would not include any CRS custom product or service prepared for a member of Congress.

“While these reports will be made publically available on the GPO website and at the discretion of the CRS director, authorial information can be redacted, ensuring the anonymity of each CRS staffer,” Hampsten said in an email. “While it has been a concern that the publication of the reports might lead to CRS being viewed as speaking for Congress, each CRS product would include a disclaimer stating that these documents were prepared by CRS exclusively for Members of Congress.”

BOWING TO THE INEVITABLE?

Backers of the Quigley-Rigell bid to end the (inconsistent) secrecy from CRS’s offerings include many former CRS employees and professional transparency advocates. Steven Aftergood, well known in the transparency community for his “Secrecy News” blog at the Federation of American Scientists, has created a cottage industry of collecting CRS reports. Another regular circulator is the subscribers-only service of CQ Roll Call.

“How do we get CRS reports? By hook or by crook,” Aftergood told Government Executive. “Ten years ago I used to be able to visit CRS colleagues in their offices and download reports onto a thumb drive to my heart's content. That's not an option anymore. Twenty years ago, my colleague John Pike discovered that the search engine on the CRS website was not secured and reports could be downloaded that way-- until I wrote about it and the security hole was patched within hours. Nowadays, I work with sympathetic colleagues and congressional staff to get the reports out.”

Aftergood said that while the casual release of reports on a case-by-case basis is sufficient for many in Congress, opponents of the Quigley bill worry that “an independent, unsupervised relationship between CRS and the public seems to be intolerable.”

Retired CRS information research specialist Sherry Shapiro pointed out that the British House of Commons addresses the problem by embargoing its numbered internal staff reports for about a month. At CRS, she noted, any member of Congress can request a confidential report, so it’s only the numbered reports—usually requested by multiple lawmakers—that prompt the debate over public release, though all CRS products are peer-reviewed. Having people in Washington more able to visit Congress and obtain individual reports in ways inconvenient for out-of-towners, Shapiro said, “creates two classes of people.”

Louis Fisher, a well-known CRS analyst and author now retired, rejected the suggestion that guaranteed publication of CRS reports would inhibit analysts. “We always knew they would be made public,” he said, noting Aftergood’s informal publishing effort. “But the reports have to be of high quality, and none of us would think of doing anything with a partisan edge,” added Fisher, who clashed with his bosses over how neutral he could be when he viewed it as his duty to take positions on questions such as whether a certain bill would be constitutional. He said he sees no harm in requiring release of the reports—“Congress is so loaded down with emails from constituents, getting these things available online immediately would relieve them.”

Harold Relyea, who performed analysis for CRS for 37 years before retiring, said, “Most members of Congress are probably indifferent on the issue,” perhaps viewing any change in policy “as the loss of a constituent perk.”

He added: “A CRS report is a safe response to a constituent inquiry about an issue. Some CRS analysts may be opposed to a change because of its potential for resulting in their greater exposure to critics on an issue….A change could result in greater exposure to non-congressional scrutiny and views by the media and interest groups.”

John Collins, a CRS specialist in defense for 24 years before retiring, said, “Open publication of CRS reports could significantly improve public understanding of important issues without degrading support for Congress.” He noted that while on staff, he chaffed under CRS prohibitions on analysts consulting outside experts, openly cultivating such relationships and passing out reports. “My methods of operation…incorporated a ‘we call, you haul’ delivery system to ensure the widest possible distribution. I routinely telephoned more than 30 media contacts the moment each of my CRS reports and Issue Briefs came off the press.”

Quigley is not giving up on the CRS transparency bill for this Congress. “There was a strong, bipartisan vote on Rep. Quigley’s amendment in committee, so we will be working to get those members not already signed on,” his spokeswoman said. But Rep. Candice Miller, R-Mich., chairwoman of the House Administration panel, and Rep. Gregg Harper, R-Miss., vice chairman of the Joint Committee on the Library both told CQ Roll Call last year that they are skeptical.

Aftergood, in the meantime, said, “I think we have developed a satisfactory work-around. Almost all non-confidential CRS reports (those not performed for individual members) are now available to the public, and the ones that are not can be obtained without too much difficulty.”